Canada faces court test over duty to update emissions plan

Court allows young climate campaigners’ challenge to proceed, leaving open whether Ottawa must revise its 2030 emissions-reduction plan.

Canada’s Federal Court has cleared the way for a challenge that could test whether the country’s climate-accountability legislation imposes enforceable duties on the federal government, following an early procedural defeat for Prime Minister Mark Carney’s administration. Handing down his decision in Ottawa on 18 September, Justice Patrick Gleeson dismissed the government’s attempt to guillotine the case before it reached a full hearing. The applicants – three young people, together with Environmental Defence Canada and the Canadian Association of Physicians for the Environment (CAPE) – argue that the government must amend its 2030 emissions-reduction plan because it can no longer achieve the national target.

They will now have the opportunity to pursue an order compelling the environment minister to update the plan, as well as declarations that the existing document does not comply with the Canadian Net-Zero Emissions Accountability Act.

Canada’s climate-accountability legislation requires the minister to establish national greenhouse-gas targets for 2030, 2035, 2040 and 2045, with net-zero emissions by 2050 as the ultimate objective. It also requires an emissions-reduction plan for each target year, which must set out the measures the government intends to take to meet the target, a timetable for implementation and projections for the resulting emissions cuts. It must also explain how the measures will contribute to the 2050 net-zero goal.

The applicants contend that legal, regulatory and policy changes since the 2030 plan was launched in 2022 have made the target unattainable. They further maintain that the plan no longer provides a genuine description of the measures Ottawa intends to use to meet it.

They wrote to the minister seeking an amendment, but received no such revision. This judicial-review application asked the court to require the minister to initiate an amendment process or otherwise bring the plan into line with the legislation.

The Attorney General of Canada sought to strike out the claim, arguing that it was bound to fail. Central to its case was section 11 of the Act, which states that the minister “may amend” an emissions target or emissions-reduction plan in a manner consistent with the legislation’s purpose. The government contended that “may” created a discretionary power, rather than a legal obligation to act. It also submitted that the court could not use judicial review to issue what would effectively be a general instruction to comply with the law.

The applicants argued that the provision had to be read alongside the Act’s mandatory requirements. Section 9 says the minister “must” establish a plan for achieving each target year, while section 10 specifies what that plan must contain. In their view, a plan which no longer describes measures capable of achieving the target cannot meet those requirements.

Justice Gleeson avoided having to decide which interpretation was correct, instead holding that the government had not shown the case was so clearly defective that it should be dismissed without a full hearing. While accepting that “may” ordinarily signals a permissive or discretionary power, he said its meaning could not be determined from that word alone. The court must consider the provision’s purpose, its place within the statutory scheme and the wider context.

The parties’ arguments required a full analysis of how section 11 interacts with the Act’s mandatory provisions, he held, as well as whether Parliament intended the minister’s duties to be open to judicial scrutiny and remedy.

The judge also refused to strike out the applicants’ arguments on standing and their requests for declaratory relief. The attorney general must now file responding affidavits within 45 days, after which the case will proceed under the ordinary Federal Courts Rules timetable.

The ruling is not a finding that Canada’s 2030 plan is unlawful, nor does it require the Carney government to amend it. But it keeps alive a case with hugely important implications for Canada’s climate commitments.

Commenting on the decision, Dr Samantha Green, CAPE’s president, said: “Doctors are already seeing climate change harm patients’ health across Canada,” referring to wildfire smoke, extreme heat and postponed surgery during evacuations. She added: “Every year our federal government fails to cut emissions is a year of harm we can’t undo.”

Julia Levin, Environmental Defence’s associate director for national climate, called the government’s lack of a climate plan “not just irresponsible – it’s against the law”, and said Canada was more than 20 years behind on its international climate commitments as a result of Prime Minister Carney’s actions.

In Maltais and others (applicants) v Minister of Environment, Climate Change and Nature, and Attorney General of Canada (respondents), the applicants were represented by Fraser Thomson and Reid Gomme of Ecojustice Canada. The respondents were represented by Sarah-Dawn Norris and Courtland Mack of the Department of Justice Canada / Ministère de la Justice Canada.